Federal Judge Approves EEOC Subpoena Even After the Private Lawsuit Was Dismissed

Wednesday, May 6, 2015

A federal judge has approved a subpoena allowing the U.S. Equal Employment Opportunity Commission (EEOC) to proceed with its class-wide race discrimination investigation of Union Pacific Railroad.

As indicated in the court's written decision, the EEOC's investigation began when two African-Americans filed charges alleging that Union Pacific had denied them promotions to assistant signal person positions because of their race. The EEOC learned that Union Pacific had not promoted a black employee into any of the 10 assistant signal person positions filled in the complainants' district in 2011. While the EEOC investigated, the complainants filed a private lawsuit, which was dismissed in July 2014. The EEOC continued to investigate the possibility of class-wide discrimination, but Union Pacific refused to comply with two EEOC subpoenas. The EEOC filed actions to enforce the subpoenas.

On May 1, U.S. District Judge Lynn Adelman ruled in the EEOC's favor for a second time and ordered the parties to appear at a June 4 conference to discuss remaining enforcement issues. (EEOC v. Union Pacific R.R. Co., Case No. 2:14-mc-00052 (E.D.Wis. May 1, 2015)).

In his decision, Judge Adelman made several key rulings. First, federal law does not support Union Pacific's argument that an EEOC investigation must end when a private lawsuit is filed or concluded; the EEOC has authority to decide how it will use its resources-including determining to continue to pursue the matter. Second, the EEOC does not simply represent the interests of private parties; it also represents the "public interest." Third, it is irrelevant that the complainants only alleged individual discrimination, because EEOC may challenge any discrimination that it discovers while investigating the claims in a charge. Thus, the July 2014 dismissal of the private claims did not deprive the EEOC of authority to investigate the possibility of a pattern or practice of discrimination.

Judge Adelman also rejected Union Pacific's argument that he should deny enforcement of the EEOC's subpoena because the amount of information it sought. The judge noted that he could modify or exclude portions of the agency's subpoena only if Union Pacific showed that the subpoena was unduly burdensome or unreasonably broad, but that Union Pacific had not made such a showing.

Finally, he rejected Union Pacific's argument that the subpoena should be dismissed because the EEOC had dragged its feet in investigating the charges. He held that Union Pacific was responsible for some of the delay because it refused to cooperate with the two EEOC subpoenas, which forced the EEOC to petition the district court to enforce them.

According to the EEOC, this is the second subpoena its Chicago District Office has sought to enforce during its investigation of these charges. Less than two years ago, in the first enforcement action, Union Pacific agreed to produce its 'Skilled Craft Battery Test' and test validation study after Judge Adelman denied its motion to dismiss for improper venue. (EEOC v. Union Pacific R.R., No. 13-mc-0022 (E.D. Wis., Aug. 6, 2013))."

Union Pacific has its corporate headquarters in Omaha, Neb. Its website states that the railroad has 47,000 employees in 23 states across the western two-thirds of the United States.